According to the civics textbooks, the lawmaking process works like this: Legislators pass a bill. If the governor agrees, he signs it into law, and his administration carries out its dictates.
This year, Vermont Education Secretary Rebecca Holcombe took a different tack. After Gov. Phil Scott signed a new omnibus education law, she declared she would not carry out one of its mandates because she lacks sufficient staff.
In an August 3 letter to the Vermont House and Senate Education Committee chairs, Holcombe flatly stated she had no plans to begin a study, required by the law, to examine how public school students are counted for the purposes of state aid to education.
“At this point, we do not have sufficient capacity to meet all of our new obligations, and certainly not on the mandated timeline,” Holcombe wrote. “We do not expect to initiate or complete the mandated weighting study contained in Act 49 until we have capacity to do so.”
Beyond the specific study in question, the secretary’s bold statement raises a broader question about the very operation of government. Can the executive branch — which includes Holcombe and other state agency heads appointed by the governor — pick and choose which laws to implement? Legislators don’t think so.
“The fear is that, this way, a governor can effectively shut down any legislation she or he doesn’t like,” said Senate Education Committee chair Phil Baruth (D/P-Chittenden).
Baruth and his House counterpart, Rep. David Sharpe (D-Bristol), wrote back to Holcombe in protest.
“What we cannot assent to, and what this memo very clearly suggests, is a reshuffling of authority, with agency secretaries (semi) officially empowered to render legislation null and void, according to their own personal priorities,” they wrote.
That appeal gained them no ground with Holcombe, who responded by reiterating her concerns. “We will undertake the weighting study as soon as staff and resources become available to perform this work,” she wrote, without suggesting when, or whether, that would happen. “We look forward to your thoughts on how the legislature can support this work, and we will assist you [to] the best of our capacity, as soon as we can.”
Tension between the legislature and a governor is nothing new: State agency heads have long bristled at legislative directives. But to openly declare in writing that a task won’t be completed?
“I don’t recall it ever happening before,” said Sharpe, a 16-year veteran of the legislature.
Holcombe’s one-woman rebellion comes after lawmakers directed the Agency of Education to do the study and recommend by December 15 whether the state should change the system used to count students for the purposes of distributing education funds. That system provides schools with money by weighting student needs. For example, it costs more to educate high school students than primary school-age children. Ditto for special education students. So those students are assigned more weight during the counting process.
“We do not have sufficient capacity to meet all of our new obligations, and certainly not on the mandated timeline.” Vermont Education Secretary Rebecca Holcombe
Baruth said large and small school districts across the state are facing new challenges that aren’t being taken into account in the weighting system. Urban areas such as Burlington and Winooski have seen an influx of refugees who need English language classes. Certain pockets of the state have students from families devastated by opiate addiction, and some rural districts are hampered by acute poverty.
“The challenges [these schools] face are tremendous,” Baruth said. “The question is, can the state get them more money to do what they need to do?”
First, lawmakers wanted to better understand the consequences and efficacy of shifting funding. But when they first considered asking the Agency of Education to study the student weighting formula, during the spring legislative session, Holcombe explicitly told them — in writing and during committee hearings — that she didn’t have enough staff.
In an April 27 email to Sharpe, Holcombe detailed her staff’s increased workload, noting that despite losing five positions through state government-wide retirement incentives, the agency has been providing complex information to school districts navigating mandated consolidations. “Even if the study passes, we won’t be able to do it,” she concluded.
In a May 3 email to Baruth and Sharpe, Holcombe wrote again, “If you assign us a weighting study, we will not be able to do it.”
Such a study would take a year to complete, Holcombe told Seven Days, and is more complicated than other studies that lawmakers have paid outside consultants to conduct.
The legislature nonetheless included the student weighting study in a larger miscellaneous education bill, which passed the House and Senate in its final form May 5. Gov. Scott — Holcombe’s boss — signed it into law May 23.
Even with the law in effect, Holcombe didn’t back down, penning the August 3 memo informing Sharpe and Baruth that she would not start the study. Holcombe said that while she didn’t discuss the memo directly with the governor, his executive staff knew that she was writing it.
She noted to Seven Days that, this year, lawmakers had assigned the agency “substantial new, unfunded statutory obligations” related to school-district consolidation and teacher health care expenses.
“I don’t feel good about this,” Holcombe said of her recalcitrance. But, she added, “How else does somebody in my position make the case?”
Scott, in an interview, said he found out about Holcombe’s letter after the fact. Asked how he reacted, he said he neither praised nor criticized Holcombe for her stand.
“This isn’t a concerted effort to stymie [the legislature],” Scott insisted, while also suggesting that Holcombe was on to something. “This is maybe a unique approach, but maybe it’s the way it should be,” he said.
Baruth noted that the governor has directed his agencies to produce next year’s budget requests with no funding increases. He worries that means state government will — without legislators’ consent — simply stop carrying out certain laws.
That approach could be a way for the Republican governor to sidestep directives from the Democratic-controlled legislature, Baruth argued.
He said Holcombe had other options. She could have asked the governor for more staffing, or Scott could have vetoed the bill, though the legislation also contained items all sides agreed were needed. In their written response to Holcombe, Baruth and Sharpe suggested they were open to alternatives.
“We are more than willing to discuss a range of possibilities that might allow the study to go forward,” they wrote.
Holcombe agreed that better collaboration is the solution, but she argued that the legislature failed on that count. “When I repeatedly say in committee and in writing, ‘We don’t have the capacity,’ it’s not collaborative when you go ahead and do it anyway,” she said.
Holcombe declined to say whether she thinks the study itself would be worthwhile if she had sufficient staff. “I think it’s something to look at,” she allowed — a lukewarm endorsement at best.
Baruth and Sharpe stand by the need for the study. “The key was to not have one legislator alter the formula [based] on his perspective, but to have a statewide perspective from the Agency of Education,” Baruth said.
While Holcombe’s noncompliance with legislative action is unusual, her complaint about legislative burdens is not. State officials have long cringed at the studies, reports and information lawmakers demand. A Seven Days analysis in May found that the legislature ordered 68 studies during the latest session.
“You grumble about it when you get these requests,” said Doug Racine, who was Agency of Human Services secretary under former governor Peter Shumlin after serving many years as a state senator. “I am sympathetic to Secretary Holcombe, because the legislature is not sympathetic to the resources of the executive branch.”
But Racine said he doesn’t recall ever openly defying a legislative directive. “Oftentimes, we’d negotiate with them for more time,” he said. Another option, Racine noted, is to ask lawmakers for money to hire a consultant.
Legislators said they’ve seen resistance take a variety of forms in different governors’ administrations — but none as blatant as Holcombe’s.
“From time to time, you’ll see a report that’s due and it’s pretty clear the department or agency … are complying technically, but it doesn’t actually do the work that was envisioned,” said Senate President Pro Tempore Tim Ashe (D/P-Chittenden).
Ashe recalled that, in 2012, lawmakers directed the state to produce a report about whether motor vehicle fees adequately compensate for the air pollution those vehicles generate. “The report was due in January 2013, never showed up, and I had to hound them to get it done, which [they] did, nine months late,” he said.
In another case, Ashe said, the legislature directed the Shumlin administration to seek a federal waiver regarding high-cost prescription drugs. The administration balked, saying the process would require hiring costly consultants. They ultimately worked with the legislature on an alternative plan, he said.
Sometimes, laws take longer to implement than legislators would like. House Speaker Mitzi Johnson (D-South Hero) said a 2015 water-quality law directed the state to update regulations on tile drains used to channel water from farm fields. A working group is still developing those changes two years later, she said.
The reality is that lawmakers have little recourse except to publicly reveal administrators’ unwillingness to act and keep pushing them to do so.
Baruth is trying to do that. Holcombe’s admission that her agency is understaffed shows that Scott’s no-new-taxes budgeting mantra is flawed, he said.
“I would like people to understand, when they hear this kind of rhetoric, it has direct consequences,” Baruth said. “He’s forcing us to rob Peter to pay Paul.”
He argued that Holcombe should be telling her boss she needs more people.
Holcombe readily acknowledges her agency’s lack of staffing. The number of agency employees has declined through budget cuts, including retirements and a general shrinking of state government positions, in the last 10 years under both Scott and Shumlin. Meanwhile, the workload associated with school district consolidations has increased, Holcombe said. The agency has asked to recoup some lost positions, noting that a full workload already awaits them.
Will Holcombe ask for more staff to focus on work such as the student counting system study as she crafts next year’s proposed agency budget? She wouldn’t say. “We’re just beginning that process,” she said. “It’s premature.”
Scott, who last year proposed that all Vermont school districts level-fund their budgets, also hedged on adding staff to the state agency that oversees them. If Holcombe asks for more, he said, “We would obviously hear it out and determine whether it was a priority for us to accomplish what we need to accomplish.”
This article appears in Nov 1-7, 2017.
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The Agency of Education credibility gap.
On December 17, 2015, the OFFICE OF THE STATE AUDITOR, released a report indicating that the VT AOE entered into a “… high proportion of non-competitive contracts…”, and “… AOE may miss the opportunity for cost savings and denies potential bidders the opportunity of contracting with the State.”
http://auditor.vermont.gov/sites/auditor/f…
In a 10-26-17 VT Digger article, ‘Private schools balk at new financial reporting analysis’, Secretary Holcombe incorrectly claimed that “When private schools close …tuition is paid in advance and cant be recovered….”, even though State Statute 16 V.S.A. 166 ‘Approved and recognized independent schools’ clearly indicates …”(f) An approved independent school that accepts students for whom the district of residence pays tuition under chapter 21 of this title shall bill the sending district monthly for a State-placed student and shall not bill the sending district for any month in which the State-placed student was not enrolled.”
https://vtdigger.org/2017/10/26/private-sc…
Now Ms. Holcombe is doubling down on a financial evaluation that the VT AOE doesn’t “… have sufficient capacity to meet all of our new obligations,…”.
Fool me once……
Holcombe should be fired.
Secretary Holcombe has been talking about the lack of financial resources to accompany legislative demands on the AOE’s time for quite a while now. She was saying this when Shumlin was governor as Act 46 of 2015 was being passed. As an aside the Vermont State Board of Education has an even larger problem in this instance … more and more work with less and less budgetary support.
The Secretary’s stance is not a protection of Governor Scott’s political policies and political proposals. The Secretary’s stance IS a protection of some very important work that is occurring around Vermont this very day: everything from school district and supervisory union mergers to a process that provides for regular school inspections and evaluations. And of course there is the large amount of work that is required by federal law to access federal funds (read 16 VSA – there is a requirement the AOE do this too).
Seems to me both Representative Sharpe and Senator Baruth really liked the idea of taking the once upon a time semi-autonomous Department of Education and turning it into a wholly owned subsidiary of the governor’s office … sow and you shall reap the results.
The Act 46 Stew !
Secretary of Education Holcombe and her minions at the Agency of Education engineered Act 46 to takeover Vermont’s independent school districts and fulfil Governor Hoff’s dream of creating one statewide school district. Hoff’s scheme failed in 1964 (and failed again when tried by Governor Kunin in 1987) when the Legislature deemed it violated the Education Clause (then Section 64) of the Vermont Constitution – the dream was unconstitutional then and is just as unconstitutional today. Challenges to Act 46 are currently working their way through Vermonts Courts and should derail this insidious scheme and, sadly, all the efforts by local officials to comply with Act 46 will wind up having been little more than a cruel ruse inflicted on them by the Holcombe gang !
When Peter Shumlin was Governor, Secretary Holcombe made no fuss about lack of resources to implement her Act 46, however now that Republican Phil Scott is the Chief Executive – she has devised to “make a play” for more cash and more staff ! What Phil Scott was thinking when he decided to retain Ms. Holcombe is hard to discern – however what has become evident is that as yet another “out-of-stater” she does not have the best interest of Vermont’s youth nor Vermont taxpayers in mind as she forges ahead with her effort to destroy Vermont’s proud tradition of community schools and local control !
Personally, I say don’t give her an extra dime and let her drowned in the stew she and her cohorts have cooked up !
For the record and from my own personal experience, Brooke Paige’s comment “Secretary Holcombe made no fuss about lack of resources to implement her Act 46, however …” is at best horribly mistaken, and at worst a deliberate lie. You know … fake news.
The discussion regarding a lack of resources for the AOE and VSBE both began right after Act 46 of 2015 was signed into law by Governor Shumlin. No, I apologize, I’m wrong …. that very discussion began when the Department of Education was turned into the Agency of Education, and once again that was while Shumlin was governor.
Secretary Holcomb has the guts to say no in advance. Most times report deadlines slide by quietly or an agency submits a short report which is not an actionable study. Happens all the time. OE staffing has been decimated and needs to be addressed. Weighting is an important issue but is complicated and any change to current formulas needs to be done carefully.
As for Ramas point, far better now that there is accountability at the executive level than when there was none and weak boards continually undercut any efforts by the Commissioner to make needed changes, and the Exec branch could do nothing about it.
Rama Schneider – “Fake News?” Odd that Secretary Holcombe didn’t express all of her financial concerns in her official 2016 pronouncements including: http://legislature.vermont.gov/assets/Legi… OR http://education.vermont.gov/vermont-schoo…
I see you didn’t even mention the fact that Act 46 violates Vermont’s Constitution, the Brigham decision, the Open Meeting Rules (706 Study Committees) and both Vermont and Federal Election Laws – Hell of a piece of legislation the Secretary and her “chief assistant” Donna Russo-Savage pushed through the “golden bubble !”
Brooke Paige’s ‘fake news’….really?
9-19-2013: Holcombe, who did a case study on the states education financing system while at the Harvard Graduate School of Education, said she has faith in the current framework.
https://vtdigger.org/2013/09/19/vermont-n-…
Listen to Ms. Holcombe’s 2015 VPR discussion on Act 46. Where’s the warning about VT AOE operating costs?
http://digital.vpr.net/post/education-secr…
In an October 5, 2015 memo on changing independent school approval process, not a word about excessive AOE administrative costs.
http://education.vermont.gov/sites/aoe/fil…
When the AOE criticized the now infamous Penn State Study, reporting that consolidation was not the cost saving panacea it was made out to be, there was not a word about Act 46 administrative costs hindering the AOE’s operation.
http://education.vermont.gov/sites/aoe/fil…
August 29, 2016: Memo regarding AOE Staff Re-Alignment…
“This transition would not have succeeded without their hard work, generosity of spirit and commitment to providing better support to our school systems.” …but not a word of concern over AOE’s inability to meet its obligations.
In fact, as I peruse the many AOE press releases concerning Act 46 and AOE governance, I see no concerns raised about the AOE not being able to meet its obligations.
http://education.vermont.gov/articles?page…
Is this characterization of ‘fake news’, itself, the practice of putting ‘lipstick on a pig’? Where’s the beef?
This was an incredibly easy find: “An aggravating factor at the Agency is that we have seen a dramatic and unprecedented decline in staffing since 2008, when we had 211 FTEs (83.2 paid by the states General fund). Today, that number is 170 FTEs (53.18 paid by the states General Fund). This somewhat limits our capacity to extend technical assistance to school districts on issues related to state funding, especially given other statutory claims on those scare general fund dollars.”
http://legislature.vermont.gov/assets/Docu…
If that isn’t enough, let’s take the discussion to the VSBE … starts just after the 2:04 mark … https://www.youtube.com/watch?v=X2214Frd-g… – I do admit this was a tad more difficult as I had to skim through the video.
Yeah – absolutely, uncontestably, totally fake news being put out in some of these comments.
Facts matter, and the matter of facts all point to Secretary Holcomb and the VSBE both speaking about the need for greater resources WHILE Shumlin was governor.
Secretary Holcombe repeatedly warned that the AOE did not have the resources to undertake such a study and the legislators did what they often do; ignore the expert testifying before them. Not all of the legislators, but too many of them.
What is most glaring to me is the manner in which Governor Scott has handled all of this. First, he must have known about the proposed study during the last legislative session. He must have known one of his appointees (okay, so I understand she was a holdover, but he reappointed her) was saying to the lawmakers considering this that she didn’t have the resources to complete it. Gov. Scott needed to step in, consult with his appointee, determine if her assessment of inadequate resources was correct, and then take action. Either inform Sec. Holcombe that she would complete the study if approved by lawmakers or reach out to the Committee chairs to discuss the lack of resources and determine a more appropriate approach at this time.
Gov. Scott is proving that he’s not a real leader. What he is is a very nice business man who wants to be liked by all. He’s in the wrong business if he wants to make everyone happy. Real leaders have to step on toes sometimes. They don’t have to like it, but they have to do it. When will Phil step up and be a real leader for Vermonters. Many of us who voted for you are waiting, Phil.
An incredibly easy find? That’s it?
A 3 1/2 hour you-tube video of a 2015 SBOE meeting discussing everything from welcoming new staff to testing to independent school governance to tuition to Act 46 mergers, and on and on. I listened as long as could and still didn’t hear any indication that the AOE was going to be in ‘noncompliance’.
And then there’s the 2016 AOE letter to the State Auditor presented as an ‘incredibly easy find’. How in the world would anyone know to look there? Was it published as a press release or on Seven Days, VT DIgger or True North?
At the bottom of page 5 of the letter is a sentence suggesting that the drop from 211 to 170 full time employees “…. somewhat limits our capacity to extend technical assistance to school districts on issues related to state funding.” But that’s it. Not another word.
And this is presented as equivalency to Ms. Holcombe announcing ‘noncompliance’ publically in the Seven Days article with the headline “Just Saying No”?
So ‘facts matter’…really? These obscure citations justify the claim that criticism of the AOE “… is at best horribly mistaken, and at worst a deliberate lie”??
Who lied? This response is even beyond the pale of the State’s public school monopoly. But make no mistake. We’re being held hostage to this ‘tar baby’ logic. Hire more AOE staff (and pay for them) or risk the threat of ‘noncompliance’.
What’s next? Will the AOE go on strike?
hahahah! Does this mean our school boards can now respond to unfunded state mandates like individualized programming for every child, proficiency based grading, etc. etc. by just refusing because we don’t have the funds?
The AOE needs to work smarter. The first thing on the list should be looking at how many hours the supposed small staff is out of the office at “trainings” and “conferences” in far off places.